People v. Smado
| Decision Date | 13 April 2001 |
| Docket Number | No. 3-99-0450.,3-99-0450. |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Scott A. SMADO, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Kathleen T. Zellner, Franco N. Carone, Kathleen T. Zellner & Associates, Naperville, for Scott A. Smado.
John X. Breslin, Deputy Director, Robert M. Hansen, State's Attorneys Appellate Prosecutor, Ottawa, James Glasgow, Will County State's Attorney, Joliet, for the People.
Following a jury trial, the defendant, Scott Smado, was convicted of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 1996)). He was sentenced to 44 years of imprisonment. On appeal, the defendant argues (1) that his trial attorneys were ineffective by (a) failing to call alibi witnesses, (b) withdrawing the defendant's motion to suppress identification evidence, and (c) failing to object that chain of custody was not established for the State's DNA evidence; (2) that the court erred in limiting cross-examination of the victim about her former relationship with a police officer; and (3) that the State failed to prove the elements of attempted first degree murder beyond a reasonable doubt. We affirm.
On September 14, 1997, the victim, Sandra Novak, arrived at a bar in South Chicago Heights at about 7 p.m. and met her friend, Guido. Novak drank beer and shots of blackberry brandy before she and Guido left the bar to go to a restaurant for dinner. Novak had some more drinks with dinner. After she and Guido returned to the bar, she continued to drink beer and shots of blackberry brandy. Novak estimated that there were about six people in the bar. Guido left after about 40 minutes.
At some point after Novak returned to the bar from dinner, the defendant entered the bar. She had not met the defendant before that evening. Novak recalled that he had tattoos on his neck and both arms. During a conversation between the defendant and Novak that lasted about an hour, Novak asked him about his tattoos. After he said that he did his own tattoos, Novak asked him if he would give her a tattoo of a mole above her lip. Novak and the defendant decided to go to the defendant's house so that he could give Novak the tattoo. By this time, the four people who remained in the bar were Novak, the defendant, the bartender, and the bartender's boyfriend.
Novak and the defendant left in what Novak assumed at the time was the defendant's car. She remembered that it was a small, light-colored, two-door car with bucket seats and that the interior of the car was "kind of messy." On direct examination, she identified a photograph of the defendant's wife's car as the car that the defendant was driving.
After they were driving for a while, Novak became nervous because the area in which they were traveling was dark and hilly. She thought it seemed unlikely that they were going to the defendant's house. She asked to get out of the car and said that she could find her way home. The defendant just kept driving. When she asked again to get out of the car, the defendant punched her in the nose. Her nose then bled profusely.
The defendant pulled the car over in the parking lot of a plant nursery. After Novak got out of the car and said that she just wanted to leave, the defendant hit her over the head several times. She remembered asking him to stop, but he kept hitting her over the head. She testified that he hit her with something more than with his fist.
After the defendant left, Novak knocked on the doors of the nursery's greenhouse, but no one was there. She made her way to a farmhouse where she asked for help. The next thing she remembered, she was in the hospital. As a result of this beating, Novak suffered a broken nose, a crushed right cheekbone, a torn left ear, a fractured hand, and a chipped tooth. She had diminished sight out of her left eye, and the doctors placed a metal plate in the left side of her head.
At the hospital, blood was drawn from Novak at 2:47 a.m. on September 15, 1997. Novak's blood-alcohol level was .277.
On September 16, 1997, Officer Patrick Barry of the Will County sheriff's police met with Novak in the intensive care unit of the hospital. Barry initially testified that Novak was unable to talk because she was on a breathing apparatus. Barry later testified that Novak was not on the breathing apparatus, but could "speak very little." Novak and Barry communicated mostly by handwritten notes. Novak indicated to Barry that her attacker was known as "Tattoo Tony." At trial, Novak testified that the defendant had identified himself at the bar as "Tattoo Tony."
Barry testified that from descriptions of the attacker's tattoos, the Chicago Heights police department gave him the defendant's name as a possible suspect. Barry spoke with an investigator from South Chicago Heights who said that he and another patrol officer had picked up the defendant's wife between 10 and 11 p.m. on the night of Novak's attack. The defendant's wife was walking home on a dark street after playing bingo. She told the officers that her husband was supposed to pick her up but had not.
At the September 16 meeting between Barry and Novak in the hospital, Barry showed Novak a lineup of five or six photos of individuals with similar characteristics. The defendant's photo was included in this lineup. On this day, Novak was unable to positively identify the defendant's photograph.
On September 17, 1997, Barry returned to the hospital and showed Novak a second photo lineup. The defendant was the only person whose photos were common to both lineups. On this occasion, Novak identified the defendant's photo as being that of her assailant. She signed the back of the defendant's photo from this second photo lineup.
At the trial, defense counsel began to ask Novak about her previous relationship with a South Chicago Heights police officer. The prosecutor objected on the grounds of relevance. Out of the presence of the jury, defense counsel submitted that the defense was investigating the possibility that Novak previously had been beaten by the police officer whom she had dated. The defendant's attorney also offered that an investigating officer's report noted that he overheard a doctor at the hospital say that Novak was attempting to protect the identity of her assailant. The judge stated that he would sustain the prosecution's objection unless the defense could tie this beating to her previous relationship with the police officer. In open court, Novak testified that she never told anyone that she was trying to protect the identity of her assailant.
Law enforcement officers gathered evidence from the area around the nursery and the defendant's wife's car. Novak's earrings and sandals were recovered from the crime scene. Among other items, police technicians and officers retrieved an eight-inch crescent wrench from the defendant's wife's car. Police officers testified that the crescent wrench, however, was not conclusively tied to Novak's beating.
A police evidence technician removed pieces of the car's passenger door panel and packaged them for the crime lab. A crime lab technician testified that one bloodstain from the door panel was a mixed stain that contained Novak's DNA profile and the DNA of another person. A second bloodstain was unmixed and was consistent with Novak's DNA.
At trial, Charles Fehil testified that he and the defendant were incarcerated at the Will County jail during the same time period. Fehil said the defendant told him that the defendant's case would likely be dropped if two witnesses were not found by the State. At the trial, the prosecution submitted evidence that the bartender and the bartender's boyfriend from the bar where Novak and the defendant met were subpoenaed as witnesses, but could not be located at the time of trial.
The defendant confided in Fehil that on the night of the beating, he had left a bar in Chicago Heights with someone with whom he wanted to have sex. The defendant told Fehil that he got angry with this person and punched her while stopped in a car in front of a greenhouse. The person either got out or fell out of the car and the defendant started beating the person. The defendant told Fehil that he gave this person a "pumpkin head," a prison term meaning beating someone about the head producing bumps all over the person's head. The defendant kicked her in the head and because she did not move, he thought she was dead. Fehil testified that the defendant said he wanted to kill this person. Fehil said that he was offered a reduced sentence by the State in exchange for his testimony.
The jury found the defendant guilty of attempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 1996)), and aggravated battery (720 ILCS 5/12-4(a) (West 1996); 720 ILCS 5/12-4(a) (West Supp. 1997)). Initially, the court sentenced the defendant to consecutive sentences of 44 and 10 years for these offenses. After the defendant moved to reconsider the sentence, the court found that the aggravated battery count merged with the attempted first degree murder count and sentenced the defendant to 44 years of imprisonment.
The right of the accused to counsel in preparation for trial is a fundamental constitutional right guaranteed by the sixth and fourteenth amendments of the Constitution of the United States, and article I, section 8, of the Illinois Constitution. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. This right includes the right to effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) trial counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance so prejudiced the defendant that but for counsel's...
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